Theorists, Get Over Yourselves: A Response to Steven D. Smith

Article by: Andrew Koppelman

41 PEPP. L. REV. 937 (2014)

Steven D. Smith is one of our most powerful critics of contemporary liberal theory. He has an acute sense of the hidden flaws and gaps in contemporary conventional wisdom. Even those who disagree must, if they are honest, carefully consider his arguments. In his most recent work, he claims that in our political culture the case for the specific protection of religious liberty—as opposed to liberty under other descriptions—has been undermined. As a consequence, he fears that, although some freedoms will survive, freedom of religion as such may cease to exist. Even if his argument is sound, his fears are misplaced. I just wrote a book defending the specifically American practice of singling out religion for special protection, so I am unlikely to be persuaded by a claim that the thing cannot be done. Stipulate, however, that my argument there fails, and that there is no coherent theoretical case for special treatment of religion. It hardly follows that the law’s special treatment of religion is in any danger.

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Does Shariʿa Play a Role in Turkey?

Article by: Russell Powell

41 PEPP. L. REV. 1101 (2014)

This essay introduces my empirical research exploring Turkish perceptions of law and religion. I returned from Istanbul in the summer of 2013, having recently completed the data collection. I have studied Turkey for nearly thirty years and first lived there in 1990. Since then, I have visited regularly to teach and conduct research. On my most recent trip, I stayed in the Taksim district of Istanbul, where I often stay during my visits. However something was different this time. On May 31, 2013, in response to the use of police force against a small group of nonviolent demonstrators, massive protests broke out; it was not the first time in recent weeks that riot police used tear gas and water cannons.

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Response: Situating Ourselves in History

Article by: Steven D. Smith

41 PEPP. L. REV. 983 (2014)

On the verge of the new millennium, the eminent historian Jacques Barzun, possibly the most learned person then alive, observed that as the twentieth century was winding down “[a] wider and deeper scrutiny is needed to see that in the West the culture of the last 500 years is ending at the same time.” “[T]he culture,” Barzun lamented, “is old and unraveling.” Over the last centuries, the West “has offered the world a set of ideas and institutions not found earlier or elsewhere.” In developing these “ideas and institutions,” however, the West “has pursued characteristic purposes . . . and now these purposes . . . are bringing about its demise.” There is, to be sure, much to question in Barzun’s elegy, and to quarrel with—its air of fatalism, for one thing. Arnold Toynbee, another historian of massive erudition and morose disposition, cautioned that history, while exhibiting discernible recurring patterns, is not ultimately deterministic. In addition, it is perilous to try to discern our own place in the broad panorama of history. With our faces pressed against the canvas, how can we see the whole picture? Thus, the annals are replete with people who mistakenly believed they were living on the brink of the apocalypse (and also of people who erroneously expected to see the Millennium—the one where lions eat grass and lie down with lambs—or some secular variant thereof).

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The Last Chapter?

Article by: Steven D. Smith

41 PEPP. L. REV. 903 (2014)

In November 2011, Stanford law professor (and former federal judge) Michael McConnell debated Harvard law professor Noah Feldman at Georgetown University on the topic “What’s So Special about Religious Freedom?” McConnell reminded the audience that the First Amendment singles out religion for special protection, and he argued that this treatment continues to be appropriate today. For his part, Feldman conceded the first half of McConnell’s argument: the First Amendment provides, and framers like Madison supposed, that religious freedom is deserving of special protection. But that supposition is no longer justified, Feldman argued. The Constitution’s special treatment of religion was based on historical conditions and theological commitments that happened to prevail at the founding. But conditions are different now, and in a modern liberal state it is unacceptable for government to act on theological rationales. Feldman’s position did not appear to be driven by any animosity toward religion. Nor is any such animosity evident in his other work. Religious belief and expression should still be protected under other constitutional provisions, he insisted, such as freedom of speech. But there is no longer any warrant for singling out religious freedom as a special constitutional commitment.

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The End of Religious Freedom: What is at Stake?

Article by: Nelson Tebbe

41 PEPP. L. REV. 963 (2014)

Warnings can be heard today that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. Steven Smith is an eloquent and accomplished herald of that development, and his warnings have been echoed by other distinguished authors. They worry that we are seeing an unprecedented attack on the very idea of constitutional protections for religion. Although conflicts between secularism and religion are nothing new, this critique is thought to be both more fundamental—because it targets not just particular applications of religious freedom but the notion itself—and more likely to succeed. Religious freedom as a constitutional concept is thought to be at risk. In this short Response, I bracket the substance of debates over the health of religious freedom doctrine and whether religion is special. Instead, I ask what is at stake in them. In particular, I am interested in the consequences not only for constitutional litigation, but also for legislation on related issues, and for concrete political controversies that implicate constitutional questions surrounding religious actors. What would change on the ground if one side or the other were to prevail on questions such as whether religion is constitutionally distinctive or whether the doctrine of religious freedom is coherent?

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“A Jewish And Democratic State:” Reflections on the Fragility of Israeli Secularism

Article by: Zvi Triger

41 PEPP. L. REV. 1091 (2014)

While Israel self-defines itself as “a Jewish and democratic State,” the Israeli laws that pertain to the most intimate of choices—the choice of a life partner—are ancient religious laws and not laws that were enacted in a democratic process. The only way to get married in Israel is in a religious ceremony according to one’s religion. The determination of a person’s religion, as will be discussed below, is also under the sole jurisdiction of religious tribunals according to religious law. This regime creates numerous problems from a secular point of view, three of which will be discussed in this Essay. First, religious affiliation is not a matter of self-definition, nor is it a matter of determination by secular state law. It is determined according to ancient religious laws and the secular state therefore has no way of altering or adapting them to our time. Second, Israelis have apparently a very narrow right to freedom from religion. Secular Israelis, whether Jews, Muslims, or Christians, who do not wish to marry in a religious ceremony or to have a religious divorce have no civil procedure or ceremony available in Israel. They must travel abroad and get married in a country that allows non-citizens to get married on its territory. Third, Israeli citizens who wish to get married in Israel are limited to choose only partners from their own religion, since most religions regard interfaith marriages as void.

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